Proportionality: Constitutional Rights and Their Limitations

666 Pages·2012·7.732 MB·English

by  Aharon Barak

PROPORTIONALITY
Having identified proportionality as the main tool for limiting
constitutional rights, Aharon Barak explores its four components
(proper purpose, rational connection, necessity, and proportionality
stricto sensu ) and discusses the relationships between proportionality
and reasonableness and between courts and legislation. He goes on to
analyze the concept of deference and to consider the main arguments
against the use of proportionality (incommensurability and irrationality).
Alternatives to proportionality are compared and future developments
of proportionality are suggested.
aharon barak is a faculty member at the Interdisciplinary Center
(IDC) Herzliya, Israel, and a visiting professor at Yale Law School. In 1975
he was appointed Attorney General of the State of Israel, becoming Justice
of the Supreme Court of Israel in 1978 and serving as President from 1995
until his retirement in 2006. He has also served as a lecturer, professor
and Dean of the Law School at the Hebrew University of Jerusalem.

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Cambridge Studies in Constitutional Law
h e aim of this series is to produce leading monographs in constitutional
law. All areas of constitutional law and public law fall within the ambit of
the series, including human rights and civil liberties law, administrative
law, as well as constitutional theory and the history of constitutional law.
A wide variety of scholarly approaches is encouraged, with the governing
criterion being simply that the work is of interest to an international audi-
ence. h us, works concerned with only one jurisdiction will be included
in the series as appropriate, while, at the same time, the series will include
works which are explicitly comparative or theoretical – or both. h e
series editors likewise welcome proposals that work at the intersection
of constitutional and international law, or that seek to bridge the gaps
between civil law systems, the US, and the common law jurisdictions of
the Commonwealth.
Series Editors
David Dyzenhaus
Professor of Law and Philosophy, University of Toronto, Canada
Adam Tomkins
John Millar Professor of Public Law, University of Glasgow, UK
Editorial Advisory Board
T. R. S. Allan, Cambridge, UK
Damian Chalmers, LSE, UK
Sujit Choudhry, Toronto, Canada
Monica Claes, Maastricht, Netherlands
David Cole, Georgetown, USA
K. D. Ewing, King’s College London, UK
David Feldman, Cambridge, UK
Cora Hoexter, Witwatersrand, South Africa
Christoph Moellers, Goettingen, Germany
Adrienne Stone, Melbourne, Australia
Adrian Vermeule, Harvard, USA
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PROPORTIONALITY
Constitutional Rights and their Limitations
AHARON BARAK
Translated from the Hebrew by
DORON KALIR

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© Aharon Barak 2012
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permission of Cambridge University Press.
First published in Hebrew by Nevo Publishing 2010
First published in English by Cambridge University Press 2012
Printed in the United Kingdom at the University Press, Cambridge
A catalogue record for this publication is available from the British Library
ISBN 978-1-107-00858-8 Hardback
ISBN 9 78-1-107-40119-8 Paperback
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CONTENTS
Table of conventions and international documents page xvi
Table of constitutions and statutes xvii
Table of cases x ix
Introduction 1
Part I Constitutional rights: scope and limitations 1 7
1 C onstitutional rights: scope and the extent of their
protection 19
A. h e nature of the distinction 19
1. Scope and protection 19
2. h e distinction in practice: the scope of freedom of expression and
its protection 21
B. h e centrality of the distinction 22
C. h e distinction in comparative law 24
D. h ree stages of constitutional judicial review 26
E. Absolute rights 27
1. Are there absolute constitutional rights? 27
2. h e jurisprudence of absolute rights 29
3. Absolute rights turned relative 31
F. Relative rights 32
1. h e nature of the relative constitutional right 32
2. Boundaries and limitations 32
G. Constitutional rights: prima facie or dei nite? 37
1. h e problem presented 37
2. h e prima facie constitutional right: Alexy’s view 38
3. Dei nite constitutional rights that cannot be realized 39
H. Is there a constitutional right to commit a proportional
crime? 42
v
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vi Contents
1. A constitutional right to steal? 42
2. h e criticism and a response 43
2 Determining the scope of constitutional rights 45
A. h e right’s scope is determined by constitutional
interpretation 45
1. Constitutional interpretation 45
2. Constitutional interpretation: a generous view 69
B. h e right’s scope and public interest 75
1. h e proper role of public interest considerations 75
2. Public interest as part of proportionality 76
C. h e scope of constitutional rights and the rights of
others 80
1. h e proper role of “rights of others” considerations 80
2. h e “rights of others” and constitutional rights conl ict 81
3 Conl icting constitutional rights 83
A. Resolving the constitutional conl ict at the sub-
constitutional level 83
1. A model of constitutional conl ict 83
2. Conl icts between constitutional rights and the rule of law 86
B. Conl ict between rule-shaped constitutional rights 86
C. Conl ict between principle-shaped constitutional
rights 87
1. h e scope and validity of the conl icting rights are not af ected 87
2. h e ef ect on the realization of the conl icting rights 89
3. Interpretive balancing between principle-shaped constitutional
rights 92
4. Constitutional validity 93
5. Conl icting rights with no implementing legislation 94
6. Conl icting rights which lead to a conl ict between the legislation
which dei nes their realization 96
D. A conl ict between a principle-shaped right and a
rule-shaped right 97
4 Limitation of constitutional rights 99
A. Limitation and amendment of rights 99
B. Limitation on rights 101
1. Infringement and limitation on rights 101
2. De minimis constitutional limitations 103
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Contents vii
3. Incidental limitations 105
4. Waiving constitutional rights 106
5 Limiting constitutional rights by law 107
A. h e legality principle 107
1. Legal authority to limit a right 107
2. h e authorization chain 108
B. Statutory limitations 110
1. Limitation by statute 110
2. Limitation according to statute 111
C. h e legality principle and common law 118
1. h e constitution and common law 118
2. h e common law and the limitation clause 121
Part II Proportionality: sources, nature,
function 1 29
6 h e nature and function of proportionality 131
A. h e nature of proportionality 131
1. Proportionality and its components 131
2. Dif erent methods of limiting constitutional rights 133
3. h e “silent constitution” and limitation of rights 134
4. Specii c limitation clauses 141
5. General limitation clauses 142
6. Hybrid limitation clauses 144
7. h e preferred regime: general, specii c, or hybrid limitation
clause? 145
B. h e formal role of proportionality 146
1. Proportionality regarding validity and proportionality regarding
meaning 146
2. h e constitutionality of limiting a constitutional right by
a sub-constitutional law 147
3. h e reason behind the constitutional hierarchical
relationship 149
4. h e ef ect on a constitutional right of a constitutional norm 152
5. Limitation of a sub-constitutional norm by a lower
sub-constitutional norm 155
6. Limitation of a sub-constitutional norm by an equal-level
norm 157
C. h e substantive role of proportionality 161
1. Human rights and their limitation 161
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viii Contents
2. Protecting human rights and recognizing the constitutionality of
their limitations 165
3. Both the right and its limitations stem from a shared source 166
4. h e limits on constitutional limitations 166
D. Limitation clause and the override 167
1. h e nature of the override 167
2. h e relationship between the limitation clause and the
override 169
7 h e historical origins of proportionality 175
A. Proportionality: in life and in the law 175
1. On the philosophical origins of proportionality 175
2. Proportionality and the Enlightenment 176
3. Proportionality as counter-formalism 177
4. h e contribution of Carl Gottlieb Svarez 177
B. h e development of proportionality in German public
law 178
1. Proportionality in German administrative law, 1800–1933 178
2. h e development of proportionality in German constitutional law
post-Second World War 179
C. h e migration of proportionality from German law to
European law 181
1. European legal migration 181
2. Proportionality and the European Convention on Human
Rights 183
3. Proportionality in the law of the European Union 184
D. From European law to Western European states’ law 186
E. From European law to Canada, Ireland, and
England 188
1. Canada 188
2. Ireland 190
3. United Kingdom 192
F. From Canada to New Zealand and Australia 194
1. New Zealand 194
2. Australia 195
G. From Canada and Germany to South Africa 197
H. Proportionality migrates to Central and Eastern
Europe 198
I. Proportionality migrates to Asia and South America 199
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Contents ix
1. Asia 199
2. South America 201
J. Proportionality and international human rights law 2 02
1. International and national human rights law 202
2. Proportionality and the Universal Declaration of Human
Rights 203
3. Proportionality and international humanitarian law 204
K. Has proportionality arrived in America? 206
L. Proportionality in Israel 208
8 h e legal sources of proportionality 211
A. Proportionality as a criterion for the realization of
constitutional rights 211
1. h e need for a constitutional entrenchment 211
2. h e nature of the constitutional entrenchment 213
B. Proportionality and democracy 214
1. h e relationship between democracy and proportionality: basic
assumptions 214
2. First assumption: democracy is of a constitutional status 214
3. Second assumption: democracy includes human rights 218
4. h ird assumption: democracy is based on a balance between
constitutional rights and the public interest 220
5. Fourth assumption: balancing through limitation clauses 221
6. Fit h assumption: limitation clauses are based on
proportionality 222
7. An assessment of democracy as a source of proportionality 226
C. Proportionality and the rule of law 226
1. h e German approach 226
2. First assumption: the rule of law has a constitutional status 228
3. Second assumption: the rule of law includes human rights 230
4. h ird assumption: the rule of law is based on a balance between
constitutional rights and the public interest 232
5. Fourth assumption: the balancing is conducted through limitation
clauses 232
6. Fit h assumption: limitation clauses are based on
proportionality 233
7. An assessment of rule of law as a source of proportionality 234
D. Proportionality as intrinsic to the conl ict between legal
principles 234
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x Contents
E. Proportionality and interpretation 238
F. Legal sources summary: is proportionality a logical
necessity? 240
P art III h e components of proportionality 243
9 Proper purpose 245
A. h e proper purpose as a component of
proportionality 245
1. h e nature of the proper purpose and its sources 245
2. Proper purpose as a threshold requirement 246
B. h e elements of proper purpose 249
1. h e scope of the proper purpose 249
2. h e components of the proper purpose 251
C. h e proper purpose’s content and the state’s democratic
values 251
1. Democracy’s minimum requirements 251
2. Pertinent democratic values 253
3. General criteria for determining the proper purpose 257
4. h e categories of proper purposes 260
D. h e urgency of proper purpose 277
1. h e problems with urgency 277
2. Is “urgency” required? 278
3. Criteria for determining urgency 279
E. Identifying the proper purpose 285
1. h e purposes of the limiting law 285
2. Subjective or objective test? 286
3. h e correct solution for identifying the proper purpose 298
10 Rational connection 303
A. h e nature of the rational connection test 303
1. h e content of the rational connection test 303
2. h e nature of the rational connection 305
3. Rational connection and the means “designed to achieve” the proper
purpose 306
4. Rational connection and arbitrary means 307
B. h e rational connection test and factual uncertainty 308
1. h e problem of factual uncertainty 308
2. h e certainty of the rational connection: rejection of extreme
approaches 309
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